US Court Endorses Ban on DVD Copy Technology

April 2004

COPYRIGHT
Technology

Whilst the MGM Studios v Grokster appeal is still being heard, the Electronic Frontiers Foundation suggested that consumers had suffered a setback to their digital rights when, on the application of a coalition of Hollywood movie studios, the District Court for the Northern District of California issued an injunction prohibiting 321 Studios (321) from selling versions of its DVD duplication software. The Court found that 321’s “DVD Copy Plus” and “DVD X Copy” violated 1(a)(2) and 2(b)(1) of the Digital Millennium Copyright Act (DMCA), given that each of the above programs was primarily designed, produced, and marketed to the public to circumvent embedded DVD copy protection. Both programs came equipped with an unlicensed de-scrambling component to allow users to decrypt the CSS (Contents Scrambling System) encoding and make a copy of the decrypted DVD. In making its findings, the Court ruled that the DMCA does not infringe fair use or constitutional rights of users and does not otherwise exceed the scope of Congressional powers the court ordered 321 Studios, creator of DVD backup tools, to stop selling its DVD Copy Plus and DVD-X COPY products within seven days. 321 Studios plans to appeal the ruling. “In passing the DMCA, Congress certainly did not intend to eliminate all consumer copying,” said EFF Legal Director Cindy Cohn. “This court’s reading of the statute in the 321 Studios case allows a ban on any tool that enables consumers to copy their DVDs.”

“The great popularity of 321 Studios’ products demonstrates a legitimate consumer desire to use DVDs with the same rights they have had with earlier technologies,” added EFF Senior Intellectual Property Attorney Fred von Lohmann. “The court decision in the 321 Studios case underscores the need for DMCA reform as proposed in the Boucher-Doolittle and Lofgren bills.”

The EFF COMMENT: EFF encourages the public to speak out for fair use rights by participating in the week-long campaign led by 321 Studios, makers of the popular DVD backup software recently enjoined by a California district court. “The public’s rights to fair use of copyrighted works should not disappear in the face of technological restrictions,” said EFF Staff Attorney Wendy Seltzer. “To bring back copyright’s balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media.”

In a related area, a California appeals court has overturned as unconstitutional a 1999 trade secret injunction against Andrew Bunner that prohibited him from distributing the DeCSS DVD decryption computer code. The court found there was no evidence that the Content Scrambling System (CSS) encryption technology used in DVD movie disks was still a trade secret by the time that Bunner posted DeCSS code on his website. In effect the code had entered the public domain. The Court therefore held that the injunction violated Bunner’s constitutional free-speech rights. “We are thrilled that the Appeal Court recognized that the injunction restricting Andrew Bunner’s freedom of speech was not justified,” said EFF Staff Attorney Gwen Hinze. “The Court’s ruling that there was no evidence that CSS was still a trade secret when Bunner posted DeCSS vindicates what we have said all along: DeCSS has been available on thousands of websites around the world for many years.”